States and in the Union, it cannot be supported in that sense which
would be requisite to work an exclusion of the States. It is, indeed,
possible that a tax might be laid on a particular article by a State
which might render it INEXPEDIENT that thus a further tax should be
laid on the same article by the Union; but it would not imply a
constitutional inability to impose a further tax. The quantity of the
imposition, the expediency or inexpediency of an increase on either
side, would be mutually questions of prudence; but there would be
involved no direct contradiction of power. The particular policy of
the national and of the State systems of finance might now and then not
exactly coincide, and might require reciprocal forbearances. It is not,
however a mere possibility of inconvenience in the exercise of powers,
but an immediate constitutional repugnancy that can by implication
alienate and extinguish a pre-existing right of sovereignty.
The necessity of a concurrent jurisdiction in certain cases results from
the division of the sovereign power; and the rule that all authorities,
of which the States are not explicitly divested in favor of the Union,
remain with them in full vigor, is not a theoretical consequence of that
division, but is clearly admitted by the whole tenor of the instrument
which contains the articles of the proposed Constitution. We there find
that, notwithstanding the affirmative grants of general authorities,
there has been the most pointed care in those cases where it was deemed
improper that the like authorities should reside in the States, to
insert negative clauses prohibiting the exercise of them by the States.
The tenth section of the first article consists altogether of such
provisions. This circumstance is a clear indication of the sense of the
convention, and furnishes a rule of interpretation out of the body of
the act, which justifies the position I have advanced and refutes every
hypothesis to the contrary.
PUBLIUS
FEDERALIST No. 33
The Same Subject Continued (Concerning the General Power of Taxation)
From The Independent Journal. Wednesday, January 2, 1788.
HAMILTON
To the People of the State of New York:
THE residue of the argument against the provisions of the Constitution
in respect to taxation is ingrafted upon the following clause. The last
clause of the eighth section of the first article of the plan under
consideration authorizes the national legislature "to make all laws
which shall be NECESSARY and PROPER for carrying into execution THE
POWERS by that Constitution vested in the government of the United
States, or in any department or officer thereof"; and the second clause
of the sixth article declares, "that the Constitution and the laws of
the United States made IN PURSUANCE THEREOF, and the treaties made by
their authority shall be the SUPREME LAW of the land, any thing in the
constitution or laws of any State to the contrary notwithstanding."
These two clauses have been the source of much virulent invective and
petulant declamation against the proposed Constitution. They have been
held up to the people in all the exaggerated colors of misrepresentation
as the pernicious engines by which their local governments were to be
destroyed and their liberties exterminated; as the hideous monster whose
devouring jaws would spare neither sex nor age, nor high nor low, nor
sacred nor profane; and yet, strange as it may appear, after all this
clamor, to those who may not have happened to contemplate them in
the same light, it may be affirmed with perfect confidence that the
constitutional operation of the intended government would be precisely
the same, if these clauses were entirely obliterated, as if they were
repeated in every article. They are only declaratory of a truth which
would have resulted by necessary and unavoidable implication from the
very act of constituting a federal government, and vesting it with
certain specified powers. This is so clear a proposition, that
moderation itself can scarcely listen to the railings which have been
so copiously vented against this part of the plan, without emotions that
disturb its equanimity.
What is a power, but the ability or faculty of doing a thing? What
is the ability to do a thing, but the power of employing the MEANS
necessary to its execution? What is a LEGISLATIVE power, but a power of
making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS?
What is the power of laying and collecting taxes, but a LEGISLATIVE
POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the
proper means of executing such a power, but NECESSARY and PROPER laws?
This simple train of inquiry furnishes us at once with a test by which
to judge of the true nature of the clause complained of. It conducts us
to this palpable truth, that a power to lay and collect taxes must be
a power to pass all laws NECESSARY and PROPER for the execution of
that power; and what does the unfortunate and calumniated provision in
question do more than declare the same truth, to wit, that the national
legislature, to whom the power of laying and collecting taxes had been
previously given, might, in the execution of that power, pass all laws
NECESSARY and PROPER to carry it into effect? I have applied these
observations thus particularly to the power of taxation, because it is
the immediate subject under consideration, and because it is the most
important of the authorities proposed to be conferred upon the Union.
But the same process will lead to the same result, in relation to
all other powers declared in the Constitution. And it is EXPRESSLY to
execute these powers that the sweeping clause, as it has been affectedly
called, authorizes the national legislature to pass all NECESSARY and
PROPER laws. If there is any thing exceptionable, it must be sought
for in the specific powers upon which this general declaration is
predicated. The declaration itself, though it may be chargeable with
tautology or redundancy, is at least perfectly harmless.
But SUSPICION may ask, Why then was it introduced? The answer is, that
it could only have been done for greater caution, and to guard
against all cavilling refinements in those who might hereafter feel
a disposition to curtail and evade the legitimate authorities of the
Union. The Convention probably foresaw, what it has been a principal aim
of these papers to inculcate, that the danger which most threatens our
political welfare is that the State governments will finally sap the
foundations of the Union; and might therefore think it necessary, in so
cardinal a point, to leave nothing to construction. Whatever may have
been the inducement to it, the wisdom of the precaution is evident from
the cry which has been raised against it; as that very cry betrays
a disposition to question the great and essential truth which it is
manifestly the object of that provision to declare.
But it may be again asked, Who is to judge of the NECESSITY and
PROPRIETY of the laws to be passed for executing the powers of the
Union? I answer, first, that this question arises as well and as fully
upon the simple grant of those powers as upon the declaratory clause;
and I answer, in the second place, that the national government, like
every other, must judge, in the first instance, of the proper exercise
of its powers, and its constituents in the last. If the federal
government should overpass the just bounds of its authority and make
a tyrannical use of its powers, the people, whose creature it is, must
appeal to the standard they have formed, and take such measures to
redress the injury done to the Constitution as the exigency may suggest
and prudence justify. The propriety of a law, in a constitutional light,
must always be determined by the nature of the powers upon which it is
founded. Suppose, by some forced constructions of its authority (which,
indeed, cannot easily be imagined), the Federal legislature should
attempt to vary the law of descent in any State, would it not be evident
that, in making such an attempt, it had exceeded its jurisdiction, and
infringed upon that of the State? Suppose, again, that upon the pretense
of an interference with its revenues, it should undertake to abrogate
a landtax imposed by the authority of a State; would it not be equally
evident that this was an invasion of that concurrent jurisdiction in
respect to this species of tax, which its Constitution plainly supposes
to exist in the State governments? If there ever should be a doubt on
this head, the credit of it will be entirely due to those reasoners who,
in the imprudent zeal of their animosity to the plan of the convention,
have labored to envelop it in a cloud calculated to obscure the plainest
and simplest truths.
But it is said that the laws of the Union are to be the SUPREME LAW of
the land. But what inference can be drawn from this, or what would they
amount to, if they were not to be supreme? It is evident they would
amount to nothing. A LAW, by the very meaning of the term, includes
supremacy. It is a rule which those to whom it is prescribed are
bound to observe. This results from every political association. If
individuals enter into a state of society, the laws of that society
must be the supreme regulator of their conduct. If a number of political
societies enter into a larger political society, the laws which
the latter may enact, pursuant to the powers intrusted to it by its
constitution, must necessarily be supreme over those societies, and
the individuals of whom they are composed. It would otherwise be a mere
treaty, dependent on the good faith of the parties, and not a government,
which is only another word for POLITICAL POWER AND SUPREMACY. But it
will not follow from this doctrine that acts of the large society which
are NOT PURSUANT to its constitutional powers, but which are invasions
of the residuary authorities of the smaller societies, will become the
supreme law of the land. These will be merely acts of usurpation, and
will deserve to be treated as such. Hence we perceive that the clause
which declares the supremacy of the laws of the Union, like the one
we have just before considered, only declares a truth, which flows
immediately and necessarily from the institution of a federal
government. It will not, I presume, have escaped observation, that
it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE
CONSTITUTION; which I mention merely as an instance of caution in the
convention; since that limitation would have been to be understood,
though it had not been expressed.
Though a law, therefore, laying a tax for the use of the United States
would be supreme in its nature, and could not legally be opposed or
controlled, yet a law for abrogating or preventing the collection of
a tax laid by the authority of the State, (unless upon imports and
exports), would not be the supreme law of the land, but a usurpation
of power not granted by the Constitution. As far as an improper
accumulation of taxes on the same object might tend to render
the collection difficult or precarious, this would be a mutual
inconvenience, not arising from a superiority or defect of power on
either side, but from an injudicious exercise of power by one or the
other, in a manner equally disadvantageous to both. It is to be hoped
and presumed, however, that mutual interest would dictate a concert in
this respect which would avoid any material inconvenience. The inference
from the whole is, that the individual States would, under the proposed
Constitution, retain an independent and uncontrollable authority to
raise revenue to any extent of which they may stand in need, by every
kind of taxation, except duties on imports and exports. It will be shown
in the next paper that this CONCURRENT JURISDICTION in the article of
taxation was the only admissible substitute for an entire subordination,
in respect to this branch of power, of the State authority to that of
the Union.
PUBLIUS
FEDERALIST No. 34
The Same Subject Continued (Concerning the General Power of Taxation)
From The Independent Journal. Saturday, January 5, 1788.
HAMILTON
To the People of the State of New York:
I FLATTER myself it has been clearly shown in my last number that the
particular States, under the proposed Constitution, would have COEQUAL
authority with the Union in the article of revenue, except as to duties
on imports. As this leaves open to the States far the greatest part of
the resources of the community, there can be no color for the assertion
that they would not possess means as abundant as could be desired for
the supply of their own wants, independent of all external control. That
the field is sufficiently wide will more fully appear when we come to
advert to the inconsiderable share of the public expenses for which it
will fall to the lot of the State governments to provide.
To argue upon abstract principles that this co-ordinate authority cannot
exist, is to set up supposition and theory against fact and reality.
However proper such reasonings might be to show that a thing OUGHT NOT
TO EXIST, they are wholly to be rejected when they are made use of
to prove that it does not exist contrary to the evidence of the fact
itself. It is well known that in the Roman republic the legislative
authority, in the last resort, resided for ages in two different
political bodies not as branches of the same legislature, but as
distinct and independent legislatures, in each of which an opposite
interest prevailed: in one the patrician; in the other, the plebian.
Many arguments might have been adduced to prove the unfitness of two
such seemingly contradictory authorities, each having power to ANNUL
or REPEAL the acts of the other. But a man would have been regarded as
frantic who should have attempted at Rome to disprove their existence.
It will be readily understood that I allude to the COMITIA CENTURIATA
and the COMITIA TRIBUTA. The former, in which the people voted by
centuries, was so arranged as to give a superiority to the patrician
interest; in the latter, in which numbers prevailed, the plebian
interest had an entire predominancy. And yet these two legislatures
coexisted for ages, and the Roman republic attained to the utmost height
of human greatness.
In the case particularly under consideration, there is no such
contradiction as appears in the example cited; there is no power on
either side to annul the acts of the other. And in practice there is
little reason to apprehend any inconvenience; because, in a short course
of time, the wants of the States will naturally reduce themselves within
A VERY NARROW COMPASS; and in the interim, the United States will, in
all probability, find it convenient to abstain wholly from those objects
to which the particular States would be inclined to resort.
To form a more precise judgment of the true merits of this question, it
will be well to advert to the proportion between the objects that will
require a federal provision in respect to revenue, and those which
will require a State provision. We shall discover that the former are
altogether unlimited, and that the latter are circumscribed within very
moderate bounds. In pursuing this inquiry, we must bear in mind that we
are not to confine our view to the present period, but to look forward
to remote futurity. Constitutions of civil government are not to be
framed upon a calculation of existing exigencies, but upon a combination
of these with the probable exigencies of ages, according to the natural
and tried course of human affairs. Nothing, therefore, can be more
fallacious than to infer the extent of any power, proper to be lodged in
the national government, from an estimate of its immediate necessities.
There ought to be a CAPACITY to provide for future contingencies as
they may happen; and as these are illimitable in their nature, it is
impossible safely to limit that capacity. It is true, perhaps, that a
computation might be made with sufficient accuracy to answer the
purpose of the quantity of revenue requisite to discharge the subsisting
engagements of the Union, and to maintain those establishments which,
for some time to come, would suffice in time of peace. But would it be
wise, or would it not rather be the extreme of folly, to stop at this
point, and to leave the government intrusted with the care of the
national defense in a state of absolute incapacity to provide for the
protection of the community against future invasions of the public
peace, by foreign war or domestic convulsions? If, on the contrary, we
ought to exceed this point, where can we stop, short of an indefinite
power of providing for emergencies as they may arise? Though it is
easy to assert, in general terms, the possibility of forming a rational
judgment of a due provision against probable dangers, yet we may safely
challenge those who make the assertion to bring forward their data, and
may affirm that they would be found as vague and uncertain as any that
could be produced to establish the probable duration of the world.
Observations confined to the mere prospects of internal attacks can
deserve no weight; though even these will admit of no satisfactory
calculation: but if we mean to be a commercial people, it must form
a part of our policy to be able one day to defend that commerce. The
support of a navy and of naval wars would involve contingencies that
must baffle all the efforts of political arithmetic.
Admitting that we ought to try the novel and absurd experiment in
politics of tying up the hands of government from offensive war founded
upon reasons of state, yet certainly we ought not to disable it from
guarding the community against the ambition or enmity of other nations.
A cloud has been for some time hanging over the European world. If it
should break forth into a storm, who can insure us that in its progress
a part of its fury would not be spent upon us? No reasonable man would
hastily pronounce that we are entirely out of its reach. Or if
the combustible materials that now seem to be collecting should be
dissipated without coming to maturity, or if a flame should be kindled
without extending to us, what security can we have that our tranquillity
will long remain undisturbed from some other cause or from some other
quarter? Let us recollect that peace or war will not always be left to
our option; that however moderate or unambitious we may be, we cannot
count upon the moderation, or hope to extinguish the ambition of others.
Who could have imagined at the conclusion of the last war that France
and Britain, wearied and exhausted as they both were, would so soon
have looked with so hostile an aspect upon each other? To judge from the
history of mankind, we shall be compelled to conclude that the fiery
and destructive passions of war reign in the human breast with much more
powerful sway than the mild and beneficent sentiments of peace; and
that to model our political systems upon speculations of lasting
tranquillity, is to calculate on the weaker springs of the human
character.
What are the chief sources of expense in every government? What has
occasioned that enormous accumulation of debts with which several of
the European nations are oppressed? The answers plainly is, wars and
rebellions; the support of those institutions which are necessary
to guard the body politic against these two most mortal diseases of
society. The expenses arising from those institutions which are
relative to the mere domestic police of a state, to the support of its
legislative, executive, and judicial departments, with their different
appendages, and to the encouragement of agriculture and manufactures
(which will comprehend almost all the objects of state expenditure),
are insignificant in comparison with those which relate to the national
defense.
In the kingdom of Great Britain, where all the ostentatious apparatus of
monarchy is to be provided for, not above a fifteenth part of the annual
income of the nation is appropriated to the class of expenses last
mentioned; the other fourteen fifteenths are absorbed in the payment of
the interest of debts contracted for carrying on the wars in which that
country has been engaged, and in the maintenance of fleets and armies.
If, on the one hand, it should be observed that the expenses incurred in
the prosecution of the ambitious enterprises and vainglorious pursuits
of a monarchy are not a proper standard by which to judge of those which
might be necessary in a republic, it ought, on the other hand, to be
remarked that there should be as great a disproportion between the
profusion and extravagance of a wealthy kingdom in its domestic
administration, and the frugality and economy which in that particular
become the modest simplicity of republican government. If we balance a
proper deduction from one side against that which it is supposed ought
to be made from the other, the proportion may still be considered as
holding good.
But let us advert to the large debt which we have ourselves contracted
in a single war, and let us only calculate on a common share of the
events which disturb the peace of nations, and we shall instantly
perceive, without the aid of any elaborate illustration, that there must
always be an immense disproportion between the objects of federal and
state expenditures. It is true that several of the States, separately,
are encumbered with considerable debts, which are an excrescence of
the late war. But this cannot happen again, if the proposed system be
adopted; and when these debts are discharged, the only call for revenue
of any consequence, which the State governments will continue to
experience, will be for the mere support of their respective civil list;
to which, if we add all contingencies, the total amount in every State
ought to fall considerably short of two hundred thousand pounds.
In framing a government for posterity as well as ourselves, we ought, in
those provisions which are designed to be permanent, to calculate, not
on temporary, but on permanent causes of expense. If this principle be a
just one our attention would be directed to a provision in favor of
the State governments for an annual sum of about two hundred thousand
pounds; while the exigencies of the Union could be susceptible of no
limits, even in imagination. In this view of the subject, by what logic
can it be maintained that the local governments ought to command, in
perpetuity, an EXCLUSIVE source of revenue for any sum beyond the
extent of two hundred thousand pounds? To extend its power further, in
EXCLUSION of the authority of the Union, would be to take the resources
of the community out of those hands which stood in need of them for the
public welfare, in order to put them into other hands which could have
no just or proper occasion for them.
Suppose, then, the convention had been inclined to proceed upon the
principle of a repartition of the objects of revenue, between the Union
and its members, in PROPORTION to their comparative necessities; what
particular fund could have been selected for the use of the States, that
would not either have been too much or too little too little for their
present, too much for their future wants? As to the line of separation
between external and internal taxes, this would leave to the States, at
a rough computation, the command of two thirds of the resources of the
community to defray from a tenth to a twentieth part of its expenses;
and to the Union, one third of the resources of the community, to defray
from nine tenths to nineteen twentieths of its expenses. If we desert
this boundary and content ourselves with leaving to the States an
exclusive power of taxing houses and lands, there would still be a great
disproportion between the MEANS and the END; the possession of one third
of the resources of the community to supply, at most, one tenth of its
wants. If any fund could have been selected and appropriated, equal to
and not greater than the object, it would have been inadequate to the
discharge of the existing debts of the particular States, and would have
left them dependent on the Union for a provision for this purpose.